Plaintiff
Alexander Otis Matthews, a pro se prisoner, brings
this action under the Freedom of Information Act
(“FOIA”) against the Federal Bureau of
Investigations (“FBI”), seeking records about
himself. In August 2015, the FBI moved to dismiss on the
ground that Matthews had failed to pay the required FOIA
processing fee. Dkt. 12. Subsequently, the FBI notified the
Court that Matthews had paid that fee. Dkt. 17. The Court,
accordingly, denied the motion to dismiss as moot and set a
schedule for the production of non-exempt records and for
Matthews to notify the Court if he intended to challenge the
adequacy of the FBI's production. Minute Order Oct. 8,
2015. At the same time, the Court set a schedule for briefing
on any dispositive motions. Id.

After
Matthews indicated that he would object to the FBI's
production, the FBI moved for summary judgment. Dkt. 24.
Although the FBI briefed only the merits of the dispute in
its opening brief, it raised a new, threshold issue in its
reply brief. Dkt 28. As the FBI explained, Matthews is a
pro se prisoner proceeding in forma
pauperis, who has litigated at least “26 civil
matters filed in the U.S. district courts and 20 appellate
matters in the U.S. circuit courts.” Id. at 2.
The FBI further reported that, “[w]ithout reviewing
every case, at least four decisions show that his litigation
has resulted in a ruling that he has failed to state a
claim.” Id.

If
correct, that litigation record poses a problem for Matthews
under the Prison Litigation Reform Act, and, in particular,
under the “three strikes” rule contained in 28
U.S.C. § 1915(g). That rule bars a prisoner from
proceeding in forma pauperis “if the prisoner
has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action . . . dismissed
on the ground that it is frivolous, malicious, or fails to
state a claim upon which relief may be
granted.”[1] 28 U.S.C. § 1915(g). If the Court
determines that a pro se prisoner, who has not paid
the filing fee, has three or more strikes, it may dismiss the
action without prejudice, pending filing of the fee. See
Harris v. City of New York, 607 F.3d 18, 23 (2d Cir.
2010) (“[D]istrict courts may apply the three strikes
rule sua sponte . . . [because one] purpose of the
statute was to give district courts greater power to protect
their dockets from meritless lawsuits.”).

Matthews,
then, filed a sur-reply addressing the four
“strikes” that the FBI identified in its reply
brief. Dkt. 29. As to two of the “strikes, ”
Matthews argues that the apparent dismissals for failure to
state a claim were mistakes that were subsequently corrected.
Id. at 1. In another, he says that a magistrate
judge erroneously denied his request to file based on the
“three strikes” rule, but that the district judge
corrected that error. Id. And, in the final case, he
argues that the dismissal for failure to state a claim
“is on appeal or is still under a motion for
reconsideration, ” id, , and thus should not
count for present purposes. The Court notes, however, that a
dismissal for one of the reasons proscribed by § 1915(g)
counts as a “strike, ” notwithstanding a pending
appeal. See Coleman v. Tollefson, 135 S.Ct. 1759,
1761 (2015).

In its
final brief on the issue, the FBI concedes that, in two of
the cases on which it relied, the question whether Matthews
has “three strikes” is “still
pending.” Dkt. 30 at 4. From this concession, however,
the FBI goes on to assert that “it no longer urges the
Court to dismiss this case without prejudice until Plaintiff
pays his fees.” Id. That, however, does not
resolve the matter. Rather, as the FBI initially observed,
Matthews has filed at least twenty-six district court cases
and twenty appeals. This Court has a duty to determine
whether Matthews is entitled to proceed in forma
pauperis, and cannot simply accept the FBI's sample
of four cases. Thompson v. DEA., 492 F.3d 428, 435
(D.C. Cir. 2007) (explaining that, although the defendant
bears the burden of production in establishing a §
1915(g) “strike, ” “[s]uch evidence must be
produced . . ., when readily available, by the court
itself”).

Upon
the Court's own review of Matthews's litigation
records, it appears that, before Matthews filed the instant
action on April 16, 2015, he had filed at least four
different actions that were dismissed as frivolous or for
failure to state a claim, and which therefore constitute
“strikes” for purposes of 28 U.S.C. §
1915(g):

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